When a suit and a counter-claim are decided by a common judgment, they result in two separate decrees; therefore, an aggrieved party must file two separate appeals. However, the appellate court should grant an opportunity to the appellant to rectify the error of filing a composite appeal before dismissal.

Romesh Verma, Judge(Oral)

The present Regular Second Appeal arises out of the judgment and decree as passed by the learned District Judge, Mandi,H.P. dated 02.01.2024, whereby the appeal filed by the present appellant was dismissed and judgment and decree as passed by the learned Civil Judge, Court No. 2, Mandi, District Mandi,HP, dated 23.06.2023 was affirmed, whereby the suit filed by the plaintiff/respondent was partly decreed and the counter claim as preferred by the defendant/present appellant was dismissed.

2. Brief facts of the case are that the plaintiff/respondent No.1 Smt Godawri (deceased) and others filed a suit for recovery of Rs. 8,60,000/- alongwith interest at the rate of 15% per annum. As per the averments as made in the plaint it was stated that the plaintiffs are owner in possession of land comprised in Khata Khatauni No. 392/495, Khasra No. 824, measuring 3-17-18 bighas, situated in Mohal Rewalsar,III, Bagra, Tehsil Sadar, District Mandi, H.P. It was averred that the plaintiffs intended to raise construction over this land but the strata of land was hilly, so the plaintiffs entered into a contract with the defendant on 06.05.2012 for making a plot, which contract was made between defendant and plaintiff No.1 Godawari. That the said contract was entered in the presence of the witnesses and the defendant agreed to complete entire work for a sum of Rs.6,00,000/- as per specification mentioned in the agreement.

3. Thereafter defendant started the work of making of plot and also demanded the money from the plaintiffs, as such, they have paid Rs. 3,30,000/- to the defendant from time to time. It was further averred that the plaintiffs requested time and again to compete the work as per stipulation made in agreement dated 06.05.2012 but the defendant did not pay any heed to the request of the plaintiff. Another agreement dated 03.12.2012 was executed when defendant asked the plaintiffs that he is suffering loss in the work and sought for fresh negotiation. As per the agreement dated 3.12.2012, the work was to be completed within specified period, failing which he would be held liable to pay double the amount to the plaintiffs. Further it was averred that after the execution of agreement dated 03.12.2012, the defendant worked for about 2-3 days in the said plot, but he failed to complete the work as per the terms and conditions. Therefore, suit for recovery was filed by the plaintiffs against the defendant for a sum of Rs.8,60,000/- along with interest at the rate of 15% per annum.

4. The suit was contested by the present appellant/defendant by raising various preliminary objections with regard to maintainability, non-joinder of necessary parties, estoppel, valuation etc. On merits, all the averments as made in the plaint were refuted.

5. It was submitted in the written statement that it is incorrect that the plaintiffs entered into contract with defendant on 06.05.2012 for making a plot. It was further submitted that it is correct that plaintiff No.2 entered into contract with the defendant for construction of a plot. It was denied that plaintiff No.1 got the contract made through plaintiff No.2 and that defendant entered into a contract for the construction of the plot. All the averments as made in the plaint were denied by the defendant. It was submitted that the place which was shown by plaintiff No.2 was on the road side and it was full of hard rock area. The defendant carved the plot according to the specification mentioned in rec